London Underground Ltd v Barry [1993] UKEAT 319_92_1712

EAT

London Underground Ltd v Barry

[1993] UKEAT 319_92_1712 · 1993-12-17

JUDGE B HARGROVE QC:

After a hearing on the 6th March 1992, at London (North) the majority of the Industrial Tribunal held that the Respondent had been unfairly dismissed and there had been no contribution of the Respondent. The Chairman dissented but it is not clear precisely on what grounds he dissented, whether upon the question of contribution or, upon the matter generally. We are of the view, doing the best that we can, that he did dissent generally.

The facts as found by the Tribunal were that the Respondent and another employee, a Mr Mercer, were returning from Amsterdam to Gatwick and Mr Mercer had asked Mr Barry to carry some blank video tape spools. Mr Barry said that he believed the carriage of those goods was completely innocent. In fact the tapes carried by Mr Mercer contained obscene material concerning children.

A Customs' check took place at Gatwick, the tapes were discovered and both were charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of such goods.

Mr Barry informed his employers of the position, and it is fair to say, treated them with complete candour. It is also right to point out at this stage that Mr Barry was an employee of many years standing, he was a man of well above average ability, and had obtained a number of commendations.

On the 6th February 1991 there was a hearing before a disciplinary board. The charge against him on that occasion was this:

"CONDUCT PREJUDICIAL TO YOUR CONTINUED EMPLOYMENT WITH LUL IN THAT ON SUNDAY 20TH JANUARY, AT GATWICK AIRPORT, YOU WERE ARRESTED BY HM CUSTOMS OFFICERS AND LATER CHARGED WITH IMPORTING INDECENT VIDEO TAPES AND LITERATURE, AND BEING KNOWINGLY CONCERNED IN THE FRAUDULENT EVASION OF THE PROHIBITION IN FORCE IN RESPECT OF THE SAID GOODS."

That charge I shall refer to later, but suffice it to say at this stage that Mr Barry had a hearing at which he had with him a representative from ASLEF. He was not a member of the Union but according to the finding of the Tribunal the representative had given his services to Mr Barry. In order to make the matter complete I should say that before us today Mr Barry has represented that gentleman as somebody foisted upon him. Suffice it to say that the employers dismissed Mr Barry.

After the hearing the Respondent, who up to then had indicated that he intended to plead "not guilty" at trial, pleaded "guilty" to the offence at the Crown Court and was sentenced to two months' imprisonment.

What the Tribunal found was this:

"7. We have been referred to the case of Burchell v. British Home Stores Mr Wagstaff [who appeared on behalf of the Appellant] claims that this is not a case of dismissal for conduct, but a dismissal for `Some Other Substantial Reason and the reasons are as follows'. There is no doubt that at his trial the Applicant pleaded guilty to the offences, that they were offences which exposed the public to a risk, and in particular children on the underground who it seems often ask train drivers if they may go in their cabs, that there was bad feeling expressed towards the Applicant by his colleagues and at one time he was threatened with violence in and, finally, that the Applicant had damaged the reputation of London Underground."

I pause there because, as can be seen, that paragraph is capable of two interpretations, the one is that it is what is being claimed by Mr Wagstaff, on the other hand, and this we think is the more likely view, that the Tribunal were finding those matters factually as being matters which had been the reasons for the dismissal. The reasons go on:

"8. In the opinion of the Tribunal the Respondents acted unreasonably in failing to carry out a sufficient investigation of the allegations made against the applicant. We accept that in normal circumstances it is not for an employer to set himself up as a police investigation department. However, in this case the only evidence that the respondents had at the time of the dismissal was the second-hand evidence of Mr O'Dell, what was said by the Police, but very little else on which to base the dismissal.

9. It now seems to us clear that had the Respondents asked the questions that they should have done they would have heard the Applicants side of the story and might well have reached a different conclusion.

10. We accept that the Applicant throughout claimed that he was unaware of the contents of the tapes held by Mr Mercer. Mr Mercer has given evidence before us today. We think it a pity that he was not called to give evidence at the hearing before Mr Ross and Mr Winters and we think that Mr Barry himself was ill-served by not being advised to call evidence. We think the Applicant should have been invited to give his account of what had happened. We accept that this is not a Burchell case but we do think that it would have been reasonable for the Respondents to make further enquiries without going into the realms of setting up an alternative police enquiry. We think that there should have been close collaboration between the District Line and the Bakerloo line and what was happening with Mr Mercer."

Paragraph 14 continues in this way:

"The view of the members of the Tribunal is that the Respondents failed to give adequate guidance and advice to the Applicant at the disciplinary proceedings. At best the Applicant had only got a copy of the Disciplinary Procedure. The Applicant denies having got it then. He says he had not seen any documents since he first got his contract of employment when he joined some 16 1 /2 years ago. The Respondents admit that they did not tell the Applicant that he was entitled to call witnesses to give evidence and the Respondents did not call any evidence themselves. It is the majority view of this Tribunal that there is no contributory fault by the Applicant, that it was the Respondents' conduct which led to the Applicant not fully understanding what he could do in his own defence and therefore any defects in the disciplinary Tribunal hearing are to be laid at the door of the Respondents and not the Applicant. The Applicant's argument is reinforced by Mr Mercer who also says that he did not know he could call evidence in support of his case."

As can be seen from those passages the decision of the Tribunal was diffuse and it is difficult to ascertain on a number of matters what the Tribunal, in fact, meant. That may well be due to the problems caused by a split decision and the difficulty of having to tailor a set of reasons to deal with both sides of the views held by the Tribunal. It may also be due to the problems which were caused by the very nature of the inquiry.

The first objection is that the Tribunal in paragraph 8 having decided that it was not a Burchell case has proceeded to indicate that they considered that a type of Burchell inquiry should take place. We find, with regret, that the Tribunal here has misdirected itself in law. If we are correct in divining that there were the various items set forth in paragraph 7 in relation to the reasons for dismissal, then at very most Burchell could only apply for the first of those matters and the Tribunal has never turned its mind to the other elements in the dismissal.

The second objection, and again it is one which we say with regret, we think is correct is the finding that the Respondent did not fully understand his rights. First it is correct to point out that the disciplinary procedures were part of his contract. Secondly, that document had been in existence since 1982, even in its present form. Thirdly it is obvious that there was full representation and if one looks at the progress of that inquiry before the disciplinary hearing, the only conclusion one can legitimately draw, particular from comments from Mr Barry's representative that "the majority of the matters cannot be discussed" is that very sensibly the Respondent here was taking a cautious approach to how much evidence was going to be given. It is quite impossible to believe that any person so advised and having the benefit of the contract which he had would not have been aware of his right to call witnesses, in our view that decision by the Tribunal, is perverse.

For those reasons we reach the reluctant view that the Tribunal's decision, this was an unfair dismissal, is wrong both in law and in fact and cannot stand and that our normal procedure would have been to send this matter back to the Tribunal for a re-hearing. Because of another part of this decision that is not what we intend to do. Before leaving this aspect it is right to make this comment: both the industrial Members were, to put it mildly, surprised and, more accurately, alarmed at the way in which the disciplinary board operated. The very generalised nature of the charge which did not condescend to any specifics, save that the man had been arrested, seems to them not to be in accord with usual practice in industry. We suspect, though it is not a matter into which we can go, that if we were sitting as an industrial tribunal we might take a very narrow view of that particular hearing.

The next objection which the Appellants take is in relation to the finding that there is no contribution. Contribution of course, means contribution to the dismissal and in this type of case a useful starting point is the case of Ladup Limited v. Barnes

[1982] IRLR 7

, both the facts and the law in this case are of some importance. The facts are that:

"Mr Barnes was employed at the appellant Company's Casino, he was dismissed after being arrested and charged with growing and possessing cannabis.

Mr Barnes' complaint of unfair dismissal was heard about a month before his case came before the Crown Court. The Industrial Tribunal found that his dismissal was unfair because the appellants had not carried out a proper investigation, and that Mr Barnes was in no way to blame for his dismissal. He was awarded compensation.

Subsequently, Mr Barnes was convicted of possessing cannabis and fined. The employers then applied to the Chairman of the Industrial Tribunal for a review of the finding that Mr Barnes had not, under s.73(7) or s.74(6) of the Employment Protection (Consolidation) Act, caused or contributed to any extent to his dismissal by his own actions. This application for a review was refused. The employers appealed to the EAT, arguing that the interests of justice required a review because, by his act of being in possession of cannabis and getting caught, Mr Barnes was 100% to blame for his dismissal. The Employment Appeal Tribunal allowed the appeal and ordered the respondent's unfair dismissal compensation be reduced by 100% on the grounds of his contribution to the dismissal.

The EAT held:

The Industrial Tribunal Chairman had erred in law in refusing the appellants' application that, following conviction of the respondent employer in the Crown Court for possession of cannabis, the Tribunal's decision not to reduce his unfair dismissal compensation on grounds of contributory fault be reviewed.

The appellants' contention that by his act of being in possession of cannabis and getting caught and subsequently convicted, the respondent was 100% to blame for his dismissal and that the interests of justice required a review of the Industrial Tribunal's decision . . . Although the Tribunal's decision not to make any reduction was right at the time they took it, in the light of the respondent's subsequent conviction, that decision on contribution created a blatant injustice. If the causation of the respondent's dismissal was diagnosed, one came inevitably to the fact that it was because he was in possession of cannabis and got caught.

In the circumstances, given that the facts were quite plain, there was no need for the matter to be referred back to the Industrial Tribunal and an order for 100% contribution was made.".

In the course of the case Mr

Justice Bristow said this:

"On 5.3.81 Mr Barnes was convicted before the Newcastle Crown Court for possession of cannabis and was fined. It seems that he did not plead guilty, and, therefore, we must take it, as the world has to take it, unless and until he successfully appeals against that conviction, that he was, in fact, in possession of cannabis and failed to come clean about it and did not tell the truth about it if he gave evidence. At any rate Mr Barnes defended himself as he was, of course, fully entitled to do."

It seems to us that with these variations Ladup is extremely close to this case. The first variation is that the conviction here occurred between the disciplinary hearing and the hearing before the Industrial Tribunal. The second difference is that in this case Mr Barry pleaded guilty. He says he pleaded guilty because he had received pressing legal advice upon the subject, but in view of the approach to which I have just referred by Bristow J. it is plain that the world in general must take a plea of guilty as being an admission of guilt and it is not our place to go behind that admission.

In those circumstances, it seems to us, that in the words which were used in the Ladup case, that the fact that he was caught in possession of these goods and pleaded guilty, that was the beginning of the end of the causation of his dismissal. In our view therefore this is a case of 100% contribution and upon those grounds this appeal is allowed.